NY High Court's Local Ban Decision is No Basis for Greenlighting Fracking

When the New York State Court of Appeals ruled last week that municipalities have the right to use their zoning codes to ban fracking, my reaction was one of intense relief and celebration. But I immediately became concerned that the pro-fracking elements would try to salvage something from their defeat by claiming that the decision somehow provided a justification for Governor Cuomo to greenlight fracking in the state. A column over the weekend by Fred LeBrun in the Albany Times Union made pretty much just the point I had feared. But we still think Governor Cuomo will do the right thing: Decide based on science. Because the court’s decision doesn’t change the basic fact that the limited science that does exist on fracking’s health impacts raises serious reasons for concern.

On June 30th, the state’s highest court ruled jointly on two lawsuits, one brought by an oil company and the other by a dairy farmer. In those cases, NRDC’s Community Fracking Defense Project filed an amicus curiae (friend of the court) brief. We supported the towns of Dryden and Middlefield, who argued that state law does not pre-empt them from reflecting what they believe to be the will of their constituents. The people of their towns made plain their fear of the potential harmful environmental and health impacts of fracking. So they enacted zoning amendments that prohibit use of this risky drilling technique within their borders.

And the court found that they had the legal right to do that, which should have been reason for unmitigated joy. But I suspected that the oil and gas industry, with so much at stake, would try to use this decision to its advantage. What I worried was that the oil companies would make an argument something like this: “OK, let’s look at the bright side of this decision. Now that towns can opt out of fracking, Governor Cuomo should approve it statewide, then let each town decide for itself. Some will say to us, go away. Their loss, really. Others will rightly decide that they need the jobs and the cash for leases, and say: Welcome to our town.” This argument is seductive, but utterly specious.

In his column, LeBrun offers a version of that line of thinking. “Among the many charms of the Court of Appeals decision is that it gives the governor political cover to break the impasse over hydrofracking and get on with it,” he wrote. “New York can look forward to the toughest regulations in the country, and only a lunatic would now see a slippery slope by allowing a closely monitored pilot project. For now, the best of all possible outcomes is for hydrofracking to occur only where local communities want it, and be watched like a hawk.”

Happily, the governor has shown no inclination to simply “get on with it” on fracking. Rather than make this crucial decision in a calculatedly political way, he is wisely allowing the science to unfold at the deliberate pace that good policy demands. That’s good news, because the court’s decision changed nothing about the state of the science and the need to ensure all New Yorkers are protected, even if their town boards haven't voted for a ban.

The state’s Department of Environmental Conservation and the Department of Health have been looking carefully at fracking for several years. The Health Department is evidently still some distance from concluding its examination of the potential health impacts. Last month, I wrote about an upstate senator who suggested that the decision will come early in 2015. But we fully expect the governor not to decide anything until that work is done. We have always maintained that sound science should decide the outcome—not politics. That's not a "lunatic" position; it's a pro-public health one.

Not surprisingly, the extraction companies reacted harshly to the court’s decision. It’s not difficult to understand why. Fearing the possibility that the state will eventually issue permits for fracking, more and more municipalities – nearly 180 at last count – have decided to block it by using zoning, which is a community’s power to shape land use, reasonably balancing the interests of land owners and the needs of the broader community. So they felt the need to stop this tsunami of zoning changes before it swept the state. That led to the lawsuits.

But the court made clear that the entire community—made up not only of those who own large, drillable expanses of land, but also of those who don’t—can decide, through its local elected representatives, whether fracking is a good idea or not. It’s an excellent decision, and I encourage you to read my NRDC colleague Daniel Raichel’s blog for a brief and astute analysis.

As the fracking-now folks adopt the argument I mentioned above—the what-the-heck-governor-approve-fracking-and-let-towns-decide-one-by-one argument—our role as advocates is to push back and say: Not so fast! Our governor is way too smart to be snookered by that obvious ploy. The state still has a big role in deciding on the safety or lack of safety of fracking—whether local municipalities ban it or not.

The governor should—and we strongly believe he will—stand fast and do what he has been doing: Wait patiently for the science, while resisting calls to simply “get on with it” in deciding this issue.